Litigation-I Win, You Lose vs. Mediation-Win/Win

Image
  Litigation is a zero-sum game.  It destroys relationships and fosters enmity between the parties.  Parties rarely walk away happy.  Even if they win, the expense of litigation is enormous, and collecting on judgments is difficult. Disputes ultimately resolve, but the focus on winning at any cost can lead to prolonged legal battles.  Living with a lawsuit causes ongoing stress, which can distract you from your business and even have an effect on your health. In a courtroom, the final decision lies with a judge or jury who may not fully grasp the complexities of the case. Parties relinquish control over the outcome, potentially leaving them dissatisfied with the final judgment. Mediation has the opposite effect.   Rather than polarizing people, it enables the parties to attack the issues and not each other.     The process promotes open communication, collaboration and problem-solving, which enables parties to actively participate in crafting mutually beneficial solutions.   It res

Why You Should Arbitrate Your Construction Dispute

Many of my colleagues are dissatisfied with arbitration due to its virtually unappealable nature in Massachusetts. The bases for appeal are extremely limited and include only bias on the part of the arbitrator, fraud, and other difficult-to-prove allegations. Moreover, there is no concept of "manifest disregard of the law," which means that the arbitrator can fail to apply the law correctly. Despite this, the reality is that most cases settle, and of those that go to trial, only a small percentage are appealed. For example, in Massachusetts last year, out of 52,299 civil matters filed, there were only 435 appeals, representing less than 1% of the total civil matters filed.

Construction law is a specialized area, and it is crucial for a judge or arbitrator to have experience in the subject matter of a dispute. The course of conduct in construction projects is often relevant, making experience in the field important. Therefore, the lack of a right of appeal should not discourage parties from pursuing arbitration. The parties can choose their arbitrator, resolve disputes more efficiently and, hopefully, fairly. They can also avoid negative publicity and maintain confidentiality.

I include arbitration clauses in all of my contracts and allow for mediation as an option only if both parties agree to pursue it.  That way, parties do not waste time and expense on mediation if they cannot enter the process in good faith. 

Parties should include arbitration clauses in their construction contracts because it allows them to have more control over the dispute resolution process.  When disputes arise, they should carefully consider the qualifications of potential arbitrators making their choice.  Choosing an arbitrator with specialized knowledge in the construction industry can help ensure that the dispute resolution process is efficient, effective, and fair.

If you need assistance with your construction dispute, please visit my website at www.goldmanlg.com to learn more about my experience. To schedule an arbitration or mediation, please contact me directly at 617-953-3760 or agoldman@goldmanlg.com.



Popular posts from this blog

Eligibility Requirements for the LEED Green Associate Exam from Green Building Education and Training

What are the eligibility requirements for the LEED Green Associate exam? http://www.green-buildings.com/content/78626-what-are-eligibility-requirements-leed-green-associate-exam After March 31st, 2009, candidates for the LEED Green Associate (GA) credentials must fulfill eligibility requirements. LEED Green Associate candidates are required to do ONE (1) of the following: Option 1: You must be (or have previously been) employed in a sustainable field of work This is perhaps one of the more nebulous requirements posed by the GBCI, because no definition of a "sustainable field of work" is given. The USGBC does state that the company needs to "relate to environmentalism or the green building industry". If you are in any doubt that your profession would qualify, contact the GBCI at gbci.org or by calling 1-800-795-1746. Option 2: You must be (or have been) involved in a LEED Certification Project To prove eligibility by way of LEED project involvement, you must have bee
Read more

EPA Starts Assessing Fines for RRP Violations

From Mark Paskell's blog:  http://www.thecontractorcoachingpartnership.com/Blog-Contractor-Coaching--Construction-Business-Coach-EPA-RRP-Lead-Rule/ The press release below came from the EPA.  It has been hard to persuade contractors that they need to become certified when it did not appear that the Renovation, Repair and Painting Rule was being enforced.  Now, there have been two substantial fines publicized: one in Connecticut last month ($30,700) and the one listed below.  It is time to have your contracts reviewed, insert clauses to protect you under the new law, and have your insurance policy reviewed for lead coverage! Kansas City, Kan., March 31, 2011) – Window World of St. Louis, Inc., has agreed to pay a $19,529 civil penalty to the United States to settle allegations that it failed to notify owners and occupants of at least 20 St. Louis area residential properties built before 1978 of lead-based paint risks prior to performing renovation work at those locations. Accordi
Read more

Should a Contractor Have the Homeowner Test for Lead?

I would like to learn more about the advisability of lead testing.  Homeowners might not want their homes tested for lead, because it becomes public record, and may interfere with the sale of a home or the ability to obtain a mortgage or homeowners insurance.  In addition, I strongly advise contractors not to do the testing themselves.  Let the homeowner pay an independent company to do it.  Otherwise if the GC brings a claim against a lead testing company for a false negative, the company might state that the GC did not use the test kit properly.  If the homeowner does have the house tested, consider refusing to do the work unless the homeowner has lead abatement work done.
Read more